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Criminal Offences, Sentences and its Enforcement under the Albanian Customary Law

by LL.M. Islam Qerimi (Author) Mejreme Berisha (Author)

Research Paper (postgraduate) 2011 18 Pages

Law - Comparative Legal Systems, Comparative Law

Excerpt

Table of Content

Introduction

1. The categorization of offenses under the Albanian criminal customary law (code)
1.1 Criminal offences against the person under the Albanian customary law
1.2 Cases for which was not allowed to kill the human
1.3 Place where the commission of the criminal offense was prohibited under the Albanian customary law
1.4 Criminal offences against family and marital relationships
1.5 Criminal Act against the private property
1.6 Offences against the activity of local self-government bodies

2. Types of sentences under the Albanian customary law:
2.1 Death penalty
2.2 Removal from the tribe with members and property (expelling)
2.3 Sodume
2.4 Money Penalty (fine)
2.5 Expelling
2.6 Mutilation
2.7 The loss of some rights

3. Execution of sentences
3.1 Suspension of punishment
3.2 Aggravating and mitigating circumstances
3.3 Prescription
3.4 Failure to implement decisions

Conclusion

Literature

Introduction

In this scientific work we will offer some data relating to criminal offences under the Albanian customary law, which were provided by the unwritten codes over a long historical period. It is known that among the major codes that have been implemented during the history of Albanians were: the Code of Leke Dukagjini, the Code of Skanderbeg, the Laberia Code and Code of Great Highlands. Besides these mentioned codes, there were also other codes which had a lower regional importance across different areas where Albanians live. It is important to note that the Albanian customary law was a conglomerate of legal rules, which has planned the rule of conduct in accordance with legal norms in the areas where it has been applied. This is the right which is believed to have roots in Illyrian period, and has continued to be in the mind and soul of Albanians up until today. It was applied parallel with legal systems which were installed by foreign invaders in Albanian areas. The Albanian customary law was regarded as the Albanian constitution, since it had norms with political, economic, religious and family character. In the framework of the Albanian customary law was the division of criminal justice from the other rights. In the context of criminal justice was done categorization of criminal offenses, the object of criminal act, responsibility and guilt of the perpetrators of the crime, the manner of carrying out criminal acts, time and place of carrying out criminal acts and to penalties (types) the perpetrators of criminal acts, and who was authorized to execute these penalties. The aim of this study paper is to bring some comparative data from all Albanian codes regarding penalties according to Albanian customary law, and to prove to what extent they have been approximate or distinctive in sentences and strict measures against perpetrators of criminal acts. Here will be the reflection of the brutal punishments on those convicted who have violated the most important values protected by the Albanian society. This proves that best value of the Albanian customary law to maintain the identity, tradition, culture and ensuring that their living together in harmony and peace. Through this work we will reach the conclusion that Albanians based on code, namely the criminal law with severe punishment that of the death penalty have applied only in severe cases, such as: treason against the state, killing the friend, the child's murder, offenses against honor and morality. It is important to note that for such offenses, which were set in medieval Albanian codes, severe penalties, were not the feature only of Albanians, but the phenomenon of such a sanction has been provided even in the most important states of that time. Unlike the most powerful states of that time, the Albanian society based the principles of equality between men. As regards of protecting women there was a principle, she was protected from abuse and harassment. As for the execution of sentences against perpetrators of criminal acts will be presented the fact that basically the beginning of its execution makes the closest members of the family that the perpetrators of the crime so that the perpetrator (or his family members) of rupture and criminal not to have a pretext for revenge or vendetta against anyone for the act of execution of the sentence. It is worth mentioning that the execution of the punishment was not as brutal, as in other countries laws, such as: plunged into pole, cutting the head, ear, finger, etc.

1. The categorization of offenses under the Albanian criminal customary law (code)

Albanian criminal customary law, as the specific discipline of the Albanian customary law represents the totality of the rules - unwritten rules of criminal law, which was created during centuries and was transmitted orally from generation to generation, with which were protected the vital human relationships and Albanian society in the Albanian lands and defining criminal offenses, criminal responsibility that can be pronounced to perpetrators of criminal acts[1]. According to the Albanian customary law offenses were divided in four types:

- Criminal offences against the person
- Criminal offences against family and marital relationships
- Criminal offences against private property
- Criminal offences against the activity of local self-government bodies

As it is seen in the Code of Leke Dukagjini (hereinafter CLD) political crimes are not anticipated, since then there was no Albanian state, but in the customary law of the Code of Skanderbeg respectively (hereinafter SC), and the Laberia Code (hereinafter LC) have existed Institute of treason against the country, then of spying on behalf of the enemy

1.1 Criminal offences against the person under the Albanian customary law.

According to general data from the Albanian Codes, Prof. Ismet Elezi has given a definition regarding what is understood to a criminal offence under the Albanian customary law. He noted that the criminal offense against the person were understood "those acts or omissions committed by guilt and provided by the norms of the customary law that directed against the social relations that provide life, health, honor and dignity of the person”[2].

An important distinction between the modern criminal justice and customary Albanians law stands as retaliation against the perpetrators of the crime belonged only to the injured person, his family or his tribe, and not to the state or someone else because the state would have to intervene only when public order was threatened

The code of Lek Dukagjinit in § 394, Laberia Code § 12[3] have sanctioned the principle of equal protection of human life, which was inherited by tribe order: where it said “the good and the bad one have one price “interrelated in religious context, that says soul to soul , “because Duke is forgiven by god” based in § 593 of CLD, meanwhile the Code of Skanderbeg § 2938 had anticipated “that blood of man has no distinction with the bad and good one, young or old, leaders and populace, child and elder.”[4].

a) These codes, like all other Albanian codes of that time, were a product and reflection of the feudal law. From this equality, there were two exceptions:
b) a) the exclusion of church from obligation to the community (provincial flag)[5] and
c) The out code position of the woman[6], which are traces of old periods.

For others there is was a rule, that "being Bajrak Kulla ", this means for house of Gjomarkut[7],

they are equally subject to the same rule. Therefore it is worth attention the following paragraphs of Albanians Codes to see people's equality, and responsibility in the event of failure of those norms of that period adjusted with the customary criminal norms, stating "Although the old man or a head, the pledge will be handled to the hands of elders of people, if someone will bewail with it"- 141 § 1014 in CLD or other case" everyone is held four hundred dirham in steelyard (in ancient unit of weight)"in CLD § 889, as LC § 21, which contain a rough equality of people

. A definition for the punishment anticipates also SC in § 2217 where determines that "punishment with the mouth of code, is a bad thing that people, leaders and populace will do to the guilty one, to sentence any of the evil committed by him ".

According to Albanian codes CLD § 843, Shooter was called the one who killed someone with his own hands, and the murder according to SC § 2736 KS was considered to take the life of someone by any means, whereas subsequent article of this code determines what are the causes of performance of this offense. Therefore, the crime of murder was carried out for blood feud purposes, for revenge or anger, for interest or for the misery.

According § § 770 -772 of the CLD in cases of inability to find the perpetrator, the injured party may require from village responsibility in relation to the commission of that act. Therefore, under this article has existed presumption of collective guilt of the village, whether for dead body is is lost or if the unidentified corpse was found. For this reason, the burden fell on the village to investigate who is the offender. If the person was identified, he had to swear if revenge was taken by him and the other party was asked to take in charge for revenge. If he did not accepted, should be liberated from the presumption of guilt before the jury, and the court of elders[8]

As for repentance of perpetrators of crime are also, the same thing also emphasized the Albanian customs where criminal murderer did not apologized for the crime he has done, he should be prosecuted and executed. But if the opposite happened he apologized, elders of tribe, village, Bajrak and with customs of the country where the crime occurred, had the human task of realizing reconciliation, putting the parties to agree, liabilities against criminal for meeting standards the code required for forgiveness.

The direct object of the criminal offenses for murder were those social relations established to ensure the person's life, in social relations that provide health, honor and dignity of the person; in theft, in robbery and for relations that ensured wealth (§ 611 KL).

The Albanian customary law offense has known a large number of types of aggravated murder, which were:

The murder after reconciliation of the blood, the murder of friend in given oath, , killing for tribe, killing, "kill and escape " murder of the murdered in a given oath, the murder for legacy, the murder of a priest or Imam, the murder of pregnant woman, murder of the foreigners, killing the messenger, kill in the assembly, killing for weapon, the murder of father, of mother, of babes, the murder of worker, killing the brother.

.According to Albanian codes was envisaged the sense/understanding of guilt. So, for example In LC § 610 with guilt meant action or inaction (behavior), which is risky social behavior, causing effects (damage) to the other or to community, intentionally, willfully, or negligently. While under § 2728 SC with blame was meant a bad spiritual and body that is conducted from somebody with intention.

Most of the criminal offenses could be accomplished by an act or omission. Especially the offenses were comm0itted by active measures, as were e.g. treason against the country, espionage in favor of the enemy spy, taking the life of another men (murder, murder for revenge, murder for interest, murder without intention, suicide, etc.), injury, fraud, burglary, robbery or damage to property of other men. By omission was meant that killing was committed if the baby was not feed.

It was significant the time of the murder, if it was done when Bajrak was at war it cannot be regarded as a blood feud, or place of murder, for example blood feud could not be accomplished at his own home, or in the house of hosts, or even in religious objects.

Criminal responsibility was not specifically provided in the code of Lek Dukagjini, but usually was considered time when a person was able to bear arms, considered age of 14-15 years. In § 653 LC was anticipated that age 14-15 years was the age of maturity of individuals. By this age for any offense committed by the juvenile, the responsibility belonged to parent of male household. The customary law had failed to provide educational measures for minors.

1.2 Cases for which was not allowed to kill the human

In some specific paragraphs, the Code clearly defines what conditions man shall not be killed, respectively, for what the true man does not kill: such actions were:

1) For the words, orally,
2) For swearing and
3) For fisticuff, the man does not kill,

but usually for these criminal offenses was sentenced with a fine or other penalty, such as: not participating in any wedding, or exclusion from the village, or province for a certain time or permanently.

1.3 Place where the commission of the criminal offense was prohibited under the Albanian customary law

The Code of 5 June 1890 foresaw the rate of murder, where it was foreseen such action prohibition in the road, then the code of Kastrati of 2 September 1892, where the importance was given to murder, where they foresaw severe sanctions for those who commit murder in road and for those who kill after blood feud reconciling. In the code of 1902 its limited the circle of object of the feud. In Kashnjet (Mirdita), on August 17, 1904 it was accepted as a special decision for murder that takes place within the tribe, then by 1906, 07, 1911 in the code of Dukagjini Bajraks first part is devoted to blood feuds, while the second part – to injury, third part to a guest/friend and fourth part to reconciliation of feuds[9].

1.4 Criminal offences against family and marital relationships

In the marital and family relationships - those who were directed against patriarchal relationships - family and marriage, set in accordance with the interests of the family head, the heads of the tribe, the agallar (high rank people), Bajraktars as such as: forbidden marriage and abduction of women.

In § 26 of CLD are foreseen the rights and obligations and in § 27 of the family responsibilities in relation to the village and Bajrak. Thus the violation of these so called: tax was considered as criminal offense toward family. In § 28 of CLD was determined the institute of marriage, where it was foreseen that the marriage was done in order to establish family, to enrich the house with a new member, for labor and for children.

Therefore, in the following article foresees also the ways of marriage. Important characteristic with regard to a family foundation based on the Albanian customary law had very large differences. Thus, for example according to § 29 of the CLD bigamy was not allowed, respectively marriage with two or more women, stating that "the woman held without marriage (is) against religion and code of Leka. While in § 169 SC was envisaged the possibility of a husband to have more women. Thus in the mentioned article was stated that: "The Mohammedan man bond with the first marriage, may take a woman or other women, when he divorces or not ther women with marriage or not ". In § 667 of the CLD in Mirdita variant were foreseen wickedness against marriage. We have foreseen that the woman may not be touched or abducted, so if this happens then the responsible person gets into a blood feud.

And if someone was going to grab someone’s wife with her intention, The code let the guilty man and the woman with the "body and violence." They therefore for this act they will be prosecuted wherever they go. And if they got killed they were considered as not a case of blood feud. Then in the following in § § 668, 669 and 670 has foreseen other criminal acts against the way of regular marriage to the Albanians. So for those who grabbed engaged girls, for those who took a bride without marriage and for taking for a bride the wife's brother[10]

As for preserving the honor, the Albanian customary law has been opposed as to maintaining the honor of men and women. So if a woman does not preserve the honor, then she was sanctioned heavily, but when such acts themselves taken by the men it was said: "Come on, he is a man." So it is peculiar to say, that in the customary law wife had an unfavorable position compared with the male position. In the words of the Kushenini Bajraktar, can be excluded from the family if she was caught stealing at husband’s house, and by violating the honor[11].

If husband and wife were caught in flagrance then it was allowed the killing of two lovers with one bullet otherwise if they had more bullets in their body, then the guilt will be on the killer or his family will fell on blood[12]. This phenomenon occurs sadly, even in present days. So one father, who had killed his daughter says: "I don’t regret my murdered daughter because I have put the honor in place" [13] . It is important to mention the fact that according to § 836 of the CLD stated decisively that "If in an ambush were attacked women, children, house and livestock, it works against the code.

1.5 Criminal Act against the private property

Criminal acts against private property were understood that those acts were directed against the established social relations, which ensured its non-vulnerability provided in § §: 120, 201.211 and 768-821 of the CLD and § § 646 647 of LC. More specifically, in criminal acts under the Albanian customary law against private property were considered: theft, aggravated theft, robbery, big robbery, armed robbery, fraud, damage or destruction of property, whether by animals or humans.

CLD in § 768 gave a short definition in connection with the theft in this manner: stealing by his own hands an animal. Under § 3181 SC with stealing was understood taking something from somebody in a stealthily manner. While big theft was considered steal the stolen things. While, under § 722 of LC with the criminal offense of the theft was understood taking without the right, from the thief in secret or openly, knowingly and intentionally the property of other, in order to acquire for himself or for another person.

According to this following article of this code, the object of theft was considered livestock, farms and livestock products, bee, household items, personal items, money and property with economic value. It is important to note that there were these different types of theft: house stealing, theft within the village, while as a serious theft was considered: when done with women's underwear, as this was considered insulting the honor of women, as and theft of a friend of the house. Further there was also the theft of the horse, theft of bees, animal theft, theft of thieves group.

As noted the criminal act which led to impairment or damage to private property was considered robbery. According to SC § 3216 and § 768 point h of CLD was determined as the act of robbery that took thinks to someone forcibly, also the woman and girl abduction, against their will. In § 742 of LC with the offense of robbery it meant open attack on the road to take property from the other, horse, mule, ox, cow, or money that is with him, conducted by one or two persons in collaboration. As the following article defined when an action regarded as the grave robbery. This section defines that this offense that it receives attribute of figure of this act if work during this criminal act will be wounded or killed the owner of the stolen goods, or when is done at home or cottage. A Prey in § 782, § 746 of the CLD, 746 of LC and in § 3227 of SC was considered taking by force of arms openly in the head of cattle herd, of the other in the mountain meadow, in the field in order to acquire, especially when there is a conflict for a pasture land border between the communities of local units.

As a categorized criminal act against private property under § 753 LC was considered even robbery. Robbery considered collective property theft committed in order and open places, in circumstances of natural disaster or disturbance of the crowd of community life in local units, without using force. A criminal offense under the Albanian customary law was considered fraud. Under § 754 of LC fraud was considered taking the property of the other using the fraud or lie. Fraud can be done against an adult or child. Under § 3208 SC fraud was considered when it was taken something from someone by lies and tricks.

Besides the aforementioned criminal acts has existed also the criminal offense of destruction of property, which may be caused by destroying partly or by destroying the general goods of another. This damage could be caused by the person himself, or from different animals. The object of these injuries could be: damage to trees, the fields, damage to animals from other animals, damaging the forest, the water line damage, destruction of joint property.

[...]


[1] Ukaj, Bajram, Sentences in criminal law of Albania, p. 37.

[2] Elezi, Ismet, Albanian criminal customary law, Tiran, 1983, p. 142.

[3] Elezi, Ismet: The Code of Laberia,Tirane, 2006, p. 37.

[4] Ilia, Dom Frano, The Code of Scanderbeg, Milot, 1993, p.149.

[5] KLD §§ 3 & 4. KS §§ 3428 - 3439

[6] Elezi, Ismet, ibid, p 140; Elezi, Ismet, KL §§ 22 & 23; KS § 1886; KLD § 29.

[7] Mirdita was governed by Gjomarkajve based on Mountains code, which in those times, when there was no state and laws, was more than necessary to regulate the life in villages or highlands.. The governing based on code , the family of Gjomarkajve, never misused it on behalf of Mirdita people. It used its power based on customary law without using pressure or usage. This we will verify in some codes points. The property of Gjomarkaj family is marked with boundaries as any other property. Any damage done by any member of Gjomarkaj family, its damage, was assessed, judged and condemned. If heads are contradicted with Gjomarkun, then people are gathered, each man per house, for assembly, Gjomarku accepted them.

[8] Nova, Koco, sharing of justice under our customary law, in: Albanian Ethnography, no. 16, Tirana, 1989, p 96.

[9] Elezi, Ismet, ibid, p. 143.

[10] Meci, Xhemal, The code of Leke Dukagjini, In Mirdita variant, Tirana, 2002, p. 231.

[11] Preng Bajraktari, Bajraktari of Kusheninit, interviewed from the other of the study case on date 13.07.2011 in Shengjin (Albania).

[12] Dedaj, Ndue, The code – between understanding and misunderstanding, Tirana, 2010, p. 299.

[13] Grosi, Petrika, http://www.lajmishqip.com/?p=1939 [16.07.2011]. Should the death penalty be applied in Albania?

Details

Pages
18
Year
2011
ISBN (eBook)
9783640976867
ISBN (Book)
9783640976713
File size
635 KB
Language
English
Catalog Number
v176339
Institution / College
University of Vienna – Strafrecht und Kriminologie
Grade
"-"
Tags
criminal offences sentences enforcement albanian customary

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Title: Criminal Offences, Sentences and its Enforcement under the Albanian Customary Law